As has been previously discussed in this space, California Secretary of State Shirley N. Weber is seeking dismissal of a federal court challenge to California's director quota mandates - SB 826 and AB 979. Alliance For Fair Board Recruitment v. Weber, U.S. Dist. Ct. Case No. 2:21-cv-05644-RGK (RAOx). In her motion, Secretary Weber asserts:
California’s corporate board diversity statutes, enacted as Senate Bill No. 826 (2018) and Assembly Bill No. 979 (2020), further compelling and important state interests in remedying discrimination and promoting diversity in corporate leadership, with attendant benefits to California and its residents.
Both statutes rely upon an individual's self-identification as female and/or a member of an underrepresented community. Cal. Corp. Code §§ 301.3(f)(1) ("'Female' means an individual who self-identifies her gender as a women, without regard to the individual's designated sex at birth") 301.4(e)(1) ("'Director from an underrepresented community' means an individual who self-identifies as Black, African American, Hispanic, Latino, Asian, Pacific Islander, Native American, Native Hawaiian, or Alaska Native, or who self-identifies as gay, lesbian, bisexual, or transgender."). This reliance on self-identification is logically disconnected to the asserted purpose of remedying discrimination. Discrimination occurs when someone treats another differently based on a perceived characteristic. That perceived characteristic may, or may not, be in accord with the person's self-identification.
The fact that discrimination depends on perceived characteristics can be found in California's Unruh Civil Rights Act which provides:
All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.
Cal. Civ. Code § 51(b). The Act provides that "Sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status” includes a perception that the person has any particular characteristic or characteristics within the listed categories. Cal. Civ. Code § 51(e)(6). As a prohibition on invidious discrimination, the Act makes sense because it relies on the perception of listed characteristics.
The relationship of perception to "discrimination" is etymological. "Discrimination" is derived from the Latin word cernere, which means to perceive, and the prefix dis, meaning apart.
